Old friends in new frocks? MFN clauses in the online hotel booking sector/5

(All Episodes here).

At any rate, under the terms of the Final Commitments hotels will still be able to set room-only rates or “headline room rates,” while OTAs and hotels will be free to apply reductions (discounts, vouchers, cash back, etc.) off the headline rates. Those discounts, however, will not be offered to the mass of potential customers, but only to “closed group members,” for instance in the context of membership or loyalty schemes. This means that consumers will need to actively opt in in order to join the group, and membership will not be the result of some technological semi-automatism (such as a cookie dropped onto the customer’s computer) or implied behaviour interpreted broadly (e.g., registration with the OTA for booking management purposes). Moreover, in order to be eligible for the reduction, the customer will need to have made at least one prior undiscounted booking either with that specific OTA (in case of OTA’s discounts) or directly with that specific hotel (if the reduction is offered by the hotel). Finally, detailed restrictions relate to the ways in which OTAs and hotels circulate information regarding the availability of reductions. Communication regarding the specific level or extent of reductions offered by OTAs and hotels is restricted to “closed group members,” but OTAs will be free to openly publicise information regarding the general availability of reductions also to non-members, including to price comparison websites.

To the extent that the exercise of the newly granted discounting freedoms might be prevented by retail MFN clauses stipulated between IHG, Expedia, and Booking.com, the Final Commitments require the parties to the OFT’s investigation to amend those provisions. Moreover, the investigated parties must use “reasonable endeavours” to ensure that their current arrangements with other OTAs and other hotels do not contain provisions hampering those discounting freedoms, and are prevented from including such provisions in new arrangements. This means that retail MFN clauses should not be enforced against hotels in a way that prevents OTAs and the hotels themselves from offering discounts to their respective closed groups as covered by the Final Commitments. Those retail MFN provisions could still be enforced, however, in respect either of the offering of discounts to non-members or the publication of the details of such discounts outside of the closed group.

In sum, the Final Commitments would seem to endorse a level of minimum “retail” price fixing in the vertical relationship between hotels and OTAs to the extent that the room rates set by the hotels apply to the general public. Reductions off the headline room rates are reserved to “closed groups” under the terms of the settlement. It is also notable that only closed group members will be provided with detailed information concerning the specific level or extent of reductions offered by OTAs and hotels. Thus, for instance, consumers will be unlikely to find up-to-date, reliable information about the specific level of discounts offered by OTAs and hotels via price comparison websites or meta-search sites. In order to access that information consumers will have to join a number of “closed groups.” Furthermore, to be eligible for the discount, the consumer is required to have previously made an undiscounted booking with the same OTA or hotel.

(To be continued).

Study on the legal framework of text and data mining (TDM)

J.-P.Triaille, J. de Meeûs d’Argenteuil, A. de Francque for the European Commission, here. 

Public Consultation on the review of the EU copyright rules: Contributions Posted

Three rather large zip files, here (text mining tools would be quite handy).

Internet et concurrence: un couple à l’épreuve

Agefi.com, ici. 

The Economics of Resale Price Maintenance & Implications for Competition Law and Policy

J. Wright, here. 

French antitrust watchdog probes Roche and Novartis over eye drug

Reuters.com, Here.

Mexico’s Proposed Reform of Competition Law: A Critique from Europe

A. Perrot, A. Komninos, here. 

Old friends in new frocks? MFN clauses in the online hotel booking sector/4

(All Episodes here).

OFT’s investigation centred on the arrangement restricting the online travel agents’ (OTAs) ability to discount “retail” hotel rates to consumers. Expedia and Booking.com, in the context of the proceedings, are described as being vertical distribution channels providing hotel room booking services. More specifically, both Booking.com and Expedia intermediate hotel accommodation bookings on a room-only basis, i.e. not as part of a package including other travel products such as airline flights. Whereas Booking.com operates under the same “commission based” model already analysed by the German Competition Authority, Expedia utilises predominantly the “merchant model.” Under this model, OTA’s revenue consists in the difference between the ‘net rate’ the OTA paid to the hotel and the room rate paid by the customer, either at the moment the booking was made or upon check-out at the hotel. Expedia, however, does not take title to the hotel rooms it offers.

Both Expedia and Booking.com agreed to offer IHG’s hotel rooms at a rate set by the hotel group and not at a lower rate, and the OFT provisionally indicated that the vertical price agreement had as its object the prevention, restriction or distortion of competition in breach of Article 101 TFEU. According to the British Competition Authority, the arrangement restricts intra-brand price competition between the OTAs and between the OTAs and the hotels’ direct online offerings via their own websites, because OTAs cannot voluntarily sacrifice some of their commissions or margins in order to offer discounted hotel rates to price sensitive consumers. Moreover, due to the discounting restrictions, new entrants with potentially more innovative or efficient business models are unable to display lower hotel rates and, by doing that, achieve the scale necessary in order to establish themselves and grow. Finally, the alleged anticompetitive effect is likely to be amplified by the widespread adoption of similar discounting restrictions in the market.

While the British investigation focused on the alleged resale price maintenance, the OFT noted that vertical agreements incorporating discount restrictions may also include a retail MFN clause. As seen above, under the retail MFN provision it is the hotel that agrees to offer its rooms via a specific platform at a booking rate which is no higher than the rate displayed by other distribution channels. If the scope of the obligation extends to all other distribution channels, both on- and offline, including the hotel’s own website and physical desk, the effect is perfect “rate parity:” nowhere the price sensitive and highly motivated consumer will be able to find a cheaper price than the one displayed by the platform for that exact room. At first sight, however, a discounting restriction on top of a wide retail MFN clause would not make much sense. First of all, the retail MFN clause would seem incompatible with Expedia’s “merchant model,” where the booking rate is decided by the OTA itself and not by the hotel, alleged vertical price fixing aside. More importantly, under the “commission based” model a platform is practically unable to sacrifice part of the commission and obtain a cheaper rate from a hotel if that hotel has a binding, broad retail MFN in place with other distribution channels, because the price discount will have to be extended to all these other distribution channels as well. If, however, the provision has a much more limited scope, such as an “own-website MFN” according to which the room rate made available on the platform will not be higher than the price displayed on the hotel’s website, the discounting restriction would clearly affect "downstream" price competition between OTAs.

(To be continued).

CJEU: The amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account

Case C-435/12
ACI Adam BV and Others v Stichting de Thuiskopie, Stichting
Onderhandelingen Thuiskopie vergoeding, Press release here. 

Antitrust issues abound as Comcast explains Time Warner Cable deal in the Senate

GigaOm, here. 

The Rapid Evolution of Resale Price Maintenance Regulation in the United States and United Kingdom

B. Allen, S. Singleton, here. 

More Inheritable Rights for Digital Assets

C. Phelps, here. 

Primer Re Oracle v. Google and the copyrightability of certain API elements

Finnegan, here. 

Lending a Hand to the Invisible Hand? Assessing the Effects of Newly Enacted Competition Laws

J. Gutmann, S. Voigt, here. 

Norway: Publishers hit in competition probe

Newsinenglish.no, here. 

Old friends in new frocks? MFN clauses in the online hotel booking sector/3

(All Episodes here).

Second, according to the German competition watchdog, the existence of the retail MFN clause enforced by HRS leads to foreclosure. Due to the already mentioned indirect network effects, a hotel booking platform entering the market must attract a critical mass of both hotels and hotel customers (chicken-egg problem) if it wants to succeed. The retail MFN adopted by HRS makes it practically impossible for a competing online hotel booking operator to adopt an aggressive, low-price commercial strategy in order to acquire customers, because hotels cannot charge lower prices on its platform. 

Moreover, the existence of the MFN clause prevents sellers from rewarding more innovative platforms by agreeing on a different pricing model, thus reducing the incentives for incumbents and entrants to innovate. For instance, a specific platform could be in a position to offer cost-savings or other quality-based innovations to hotels, and this would justify a lower price for consumers using that platform than if they used another platform. This sort of innovation has the potential to offer customer benefits through lower hotel prices, with the prospect of generating more sales for the platform. Without MFN constraints, such innovation would lead to the seller offering lower hotel prices through that platform, reflecting the cost savings and the other benefits to the hotel due to the platform’s innovation. However, if the hotels cannot offer cheaper hotel rooms via innovative platforms because of the existence of retail MFN obligations with well-established platforms, this would reduce the incentive for a platform to innovate as the platform could not receive a greater market share from offering cheaper hotel rooms relative to its competitors. Hotels could still reward innovative platforms with higher commission fees in exchange for a better quality, but this would not lead to increased trade volumes and a higher platform’s market share. Put differently, the benefits of the platform’s innovation could be passed to the hotel partners but not to the users on the other side of the market, i.e. the consumers. 

Finally, HRS’ retail MFN clause restricts competition among hotels. As already mentioned, lower commission fees are not passed through to consumers in the shape of lower hotel room prices and, more generally, hotels cannot engage in price differentiation strategies. Not only are hotels constrained by rate parity with regard to all of their online offerings, with the inclusion of their own website, but this obligation extends to the offline distribution of hotel rooms as well.

Whereas the German investigation specifically focuses on HRS’ contracts with its hotel partners, retail MFNs clauses are employed also by Booking.com and Expedia, the other two significant competitors in the hotel booking platform market. Not only the combined market share of the three platforms is around 90%, but most hotels “multihome”, i.e. make their offers available on more than one platform. The German Competition Authority considers that the broad adoption of similar rate parity policies by the three platforms amplifies the negative effects on competition seen above.

Interestingly, the Office of Fair Trading (OFT), one of UK’s Competition Authorities recently absorbed by the Competition and Markets Authority (CMA), has been investigating the same pricing policies practiced by online hotel booking platforms since 2010 as well. A small hotel reservation platform complained to the OFT that hotels prevented her from offering hotel rooms at discounted prices. Instead of assessing the anti- and procompetitive effects of retail MFN clauses, however,  the OFT focused on whether an online hotel booking platform allowing hotels to set the room prices sold through that platform was engaging in resale price maintenance. The parties investigated are the InterContinental Hotels Groups (IHG), the largest international hotel chain measured by room numbers (675, 982 rooms world-wide, 41,340 in the UK), and two online travel agents, Expedia and Booking.com. According to the OFT, in separate arrangements with IHG it was stipulated that Expedia and Booking.com were prevented from discounting hotel rates set by IHG and displayed to customers via the platforms.  The OFT provisionally concluded that such arrangements were potentially in breach of Article 101(1) TFEU. As a result, the parties gave commitments in order to remove the alleged anticompetitive effects, which the OFT accepted on January 31, 2014.

(To be continued)

EuGH beerdigt die Vorratsdatenspeicherung

P. Schaar, hier. 

Retos y desafíos de la Ley de Federal de Competencia Económica (México)

Mesa de diálogo, Video aquì.

Death of the data retention directive could have implications for other data retention laws

Out-law.com, here. 

Old friends in new frocks? MFN clauses in the online hotel booking sector/2

(All Episodes here).

Hotel booking services such as the one operated by HRS, and investigated in Germany, provide a web-based platform enabling customers to book hotel rooms directly with the hotels. In this respect, HRS serves as an intermediary between two different groups of “users”, the sellers and the purchasers, allowing them to find each other and to transact. HRS offers its own services to both groups of users (or market sides), and indirect network effects exist between  the two groups. This means that the value of the services offered to one group of users increases with the number of members of the other group. In the case of a hotel booking platform such as HRS, the indirect network effects are likely to be reciprocal: a consumer that wants to make a reservation at a hotel benefits when that hotel makes itself available on a reservation platform and the probability of a successful match rises with an increase in the number of hotels and customers using a platform. While services are provided by the platform to both groups of users, in the case of HRS and other similar online hotel booking services, it is only the group of hotels that pays a commission fee to the platform if a contract is concluded with the customer.

Following a three-year long investigation, the German Competition Authority concluded that the retail MFN clause practiced by HRS in its contracts with hotels was a vertical agreement restricting competition in the sense of Article 101(1) TFEU, and that neither the Vertical Block Exemption Regulation applied, nor there were reasons to justify an individual exemption. The theory of harm put forth in the German decision is fourfold. First, in the absence of MFN clauses, hotel booking platforms are likely to compete with one another on the commission fees they charge to hotels. A hotel booking platform could thus decide to offer lower commission fees to its hotel partners, in the hope that hotels will be offering lower hotel room prices to consumers, and, as a consequence, the platform will grow its trade volume. Moreover, a platform is likely to be constrained in the commission fee it charges to hotels by the fear that a higher fee would lead to higher hotel room prices on that platform and therefore to a loss of market share. A retail MFN clause, however, lifts the competitive constraints on the inflation of commission fees paid by hotels. In fact, a platform wishing to gain sales has hardly any incentive to do so by lowering the commission fee charged to hotels, because the hotels are not in a position to lower hotel rooms prices offered to consumers (i.e. to "invest back" the commission saved into lower prices charged on that platform). Moreover, a platform with a retail MFN which is considering a rise in the commission fee will not have to worry that such a rise will make its offering less attractive to consumers, since any pass-through of the rise in commission fees will need to be applied to all other distribution channels covered by the retail MFN clause. In other words, the platform’s fear of the negative consequences of higher hotel room prices in terms of market shares and revenue is substantially reduced, since the platform knows that it will always be at least as competitive as any distribution channel included in the scope of the MFN (other web based platforms, hotel own-website, direct sale to customers at the hotel’s physical desk). Overall, competition among platforms is softened: there is less incentive to reduce commission fees, as there is less incentive  not to raise them. The likely result are higher commission fees and, if these higher fees are passed through by hotels, higher hotel room prices available to customers.

(To be continued).

Copyright Office Begins Wide-Ranging Inquiry Into Music Licensing

Broadcastlawblog.com, here. 

Old friends in new frocks? MFN clauses in the online hotel booking sector/1

Most-favoured-nation (MFN) provisions are found in vertical arrangements and stipulate some sort of preferential treatment in favour of specific market participants. Thus, an MFN clause widely used in industry and commonly analysed by competition authorities and courts imposes on a seller the contractual obligation to treat a customer that is party to the agreement no worse than all other customers. In this respect, the MFN clause at issue embodies the seller’s promise to treat a specific buyer as the seller treats her most-favoured customer (also called most-favoured-customer clauses - MFCs). Typically, these MFNs are employed in markets for intermediate goods, and ensure that the buyer at some stage of the supply chain will pay a specific input no more than the other customers of the same supplier. Some MFN clauses that have attracted the attention of competition policy enforcers concerned the sale of turbine generators, of lead-based anti-knock gasoline additives, of synthetic substances belonging to groups of vitamins, the distribution of digital music, of gas, and were found also in dental plan contracts between dental care service providers and dental practices and in healthcare contracts between a health insurance provider and hospitals.

While traditional MFNs ensure that one party to the agreement gets terms at least as favourable as any other party in an analogous position, a so called retail (price) MFN requires the seller to sell a good or service via a specific intermediary at a price that is not higher than the price the seller charges via other intermediaries (and/or direct). In this case, the end-buyer of the good or service is not a party to the agreement, as was always the case with the more traditional MFNs previously mentioned, and she may not even be aware that such an agreement exists between the seller and the intermediary. It follows that the buyer has no right to obtain redress if the seller does not satisfy the terms of the retail MFN clause.

Recently, adherence to retail MFN clauses has emerged as a popular pricing policy in the online world. Specifically, the seller undertakes not to charge on a specific electronic trade platform a price that is higher than the price that she charges on other platforms, creating “price parity” across platforms (Across-Platform Parity Agreement – APPA). National competition authorities in various countries have opened investigations into the price parity agreements commonly found in the online hotel booking sector. In December 2013, the German Competition Authority (German Federal Cartel Authority, Bundeskartellamt) issued a decision prohibiting HRS, leader in the German market for hotel bookings, from applying a retail MFN clause in its relationships with providers of hotel services, and ordered HRS to delete this clause from its terms and conditions. The clause investigated in the context of the German proceedings obliged providers of hotel services to offer their lowest room prices and other conditions, e.g. relating to cancellation policy, also through HRS’ platform. Moreover, the clause prevented hotels offering cheaper hotel rates and better conditions via their own websites - and even to customers directly at hotel receptions. Prior to the German Competition Authority’s decision, in February 2012, the Düsseldorf District Court of Appeal had already enjoined HRS from enforcing the retail MFN clause.

(To be continued).

Copyright Reform: Schools

R. Okediji, Presentation here. 

Fair Use for Free, or Permitted-but-Paid?

J. Ginsburg, here. 

Old friends in new frocks? MFN clauses in the online hotel booking sector

New WavesBlog serialized research effort starting on Monday!  

First Ever Extradition on Antitrust Charge

US Department of Justice, here. 

Text and Data Mining

Report from the Expert Group, EC Directorate-General for Research and Innovation, here. 

Vertical Restraints in the Movie Exhibition Industry

K. Wozniak, here. 

Understanding visitors' motivations and usage of the online collection

Tate.org.uk, here.

Wonders of (web) democracy: a UK MEP to a voter on net neutrality

Petermr's blog, here.

Reform to UK copyright exceptions: uncertainties remain

TaylorWessing, here.

European Parliament passes strong net neutrality law, along with major roaming reforms

GigaOm.com, here. 

Angst vor Google

FAZ, hier.

ABC v. Aereo, Supreme Court: Amicus Brief of 36 IP and Copyright Law Professors

Here. 

Intellectual Property - Enforcement Guidelines (Revised Draft)

Canadian Competition Bureau, here. 

Competition Bureau settles with e-book publishers, but deal is challenged by e-book seller

Nortonrosefulbright.com, here. 

Two more cartels: high voltage power cables (€ 302 million) and steel abrasives (€ 30.7 million in cartel settlement)

Press Releases here (steel abrasives) and  here (power cables).

Response to Elsevier’s text and data mining policy: a LIBER discussion paper

Libereurope.eu, here. 

Mobile Computing:The Next Platform Rivalry

T. Bresnahan and S. Greenstein, here. 

Snake-Oil with Mathematics is Still Snakeoil: Why Recent Trends in the Application of So-Called “Sophisticated” Economics is Hindering Good Competition Policy Enforcement

S. Bishop, here. 

Privacy and competitiveness in the age of big data:The interplay between data protection, competition law and consumer protection in the Digital Economy

European Data Protection Supervisor Preliminary Opinion, here

Why did they cross the Pacific? Extradition: A Real Threat to Cartelists?

Y. Usami, here.

Procedural fairness in competition proceedings + Workshop on Competition Policy

2014 ASCOLA Conference, Warsaw, Preliminary Programme here (Docx download)

The Future of Reverse Payments in the Wake of FTC v. Actavis, Inc.

Symposium Papers, here. 

Canadian Competition Bureau Releases Price Maintenance Enforcement Guidelines

Blg.com, here. 

EU Consumers in the Digital Era

D. Currie, here. 

Are Restrictions of Competition by Sports Associations Horizontal or Vertical in Nature?

O. Budzinski, S. Szymanski, here. 

Graf interviewing Wright: "Can antitrust authorities contribute to fixing the dysfunctional patent system?"

New Frontiers of Antitrust 2014 Conference, here. 

Google’s EU antitrust adventure enters new phase as major consumer group joins suit

Gigaom.com, here.

Serious Invasions of Privacy in the Digital Era

Australian Law Reform Commission, Discussion Paper, here.

IP in a World Without Scarcity

M. Lemley, here. 

SLS Patent Trolls and Patent Reform Conference

Video here. 

Alice in software patentland: SCOTUS leading out of the rabbit hole?

T. Lee, here.

Cartel busting: boring can still be bad

TheEconomist.com, here.

US Judge: Baidu's Decision To Block Certain Sites Is Protected By The First Amendment

TechDirt.com, here.

Those new copyright freedoms you're getting? You probably already signed them away

S. Phipps, here. 

LG Köln beschränkt CC-BY-NC auf rein private Nutzungen

Ifross.org, hier. 

Apple, Publishers Battle New E-book Antitrust Claims

Publishersweekly.com, here. 

A Year in the Life of the Joint DOJ-PTO Policy Statement on Remedies for F/RAND Encumbered Standards-Essential Patents

R. Hesse, here. 

Network Industries Class

R. Picker, Syllabus here (Session Slides to be added).

Australia Accepts Indonesia WTO Dispute On Tobacco Packaging; Calls For Five Disputes To Be Joined

IP-Watch.org, here. 

OFT issues decision in mobility scooters sector

Oft.gov.uk, here. 

CJEU Allowed Website Blocking Injunctions With Some Reservations

Husovec.eu, here. 

CJEU: UPC Telekabel Wien

Case C-314/12, here.

Lawyers and economists arguing against car dealer protectionism in NJ Tesla case

Letter here. 

Consultation on a proposal to make a market investigation reference in respect of the supply and acquisition of energy in Great Britain

Ofgem, here.

New EU Technology Licensing Rules

CliffordChance.com, here.

Commission antitrust investigation into Google

ConsumerWatch.org, here.

Challenges for the Enforcement of Copyright in the Online World: Time for a New Approach

C. Geiger, here.

The Competition Dimension of the European Regulation of Public Sector Information and the Concept of an Undertaking

J. Drexl, here.

Amazon Issues Kindle Credits for eBook Antitrust Settlement

Blogs.cio.com, here.

Permissionless innovation

A. Thierer, here.

A license that is more than a license

FTC, here.

A step towards adoption of Treaty to ensure equal access to books for visually impaired and print disabled persons

Gr2014.eu, here.

Converging Standards of Protection from Secondary Liability for Trademark and Copyright Infringement Online

M. Peguera, here. 

Liberal group supports D66 proposal to enshrine net neutrality in EU law

Marietjeschaake.eu, here.

BEUC calls for EU inquiry after Italy punishes pharma cartel

Beuc.eu, here.

Searching for Physical and Digital Media: The Evolution of Platforms for Finding Books

M. Baye, B. De Los Santos, M. Wildenbeest, here (pdf download).

The End of Meta Search Engines in Europe?

M. Husovec, here.

UK CC provisionally confirms jurisdiction in Eurotunnel case

Here.

Netflix thinks peering should be a net neutrality issue too

Gigaom.com, here.

Information held in electronic databases not property which can be possessed, rules UK court

Out-law.com, here.

Pay TV: Court of Appeal sends message to the CAT

CompetitionBulletin.com, here.

What drives self-regulation in the nascent P2P “ride-sharing” industry?

P. Belleflamme, here.

¿Habrá reclamaciones de daños por el cártel de las desmotadoras de algodón?

F. Marco, A. Robles, aquì.

Drug Makers and Antitrust: Is Cash All That Matters?

Blogs.wsj.com, here.

When MOOC Profs Move

Insidehighered.com, here.

Private Schadensersatzklagen in EU vereinfacht

Eppgroup.eu, hier.

EC fines producers of car and truck bearings € 953 million in cartel settlement

 Press release, here.

Baromètre 2014 de l’offre de livres numériques en France

KPMG, here (pdf download).

Viacom and Google settle long running copyright lawsuit against YouTube

TheVerge.com, here.

Verbraucher Tracking

J. Schallaböck im Auftrag der Bundestagsfraktion Bündnis 90/Die Grünen, hier (pdf download).

Net Neutrality: Dangerous Loopholes Remain After Key Vote by Lead EU Parliament Committee

LaQuadrature.net, here.

Apponomics

P. Salz with InMobi, here (pdf download)

WhatsApp founder says privacy concerns after Facebook buyout are 'unfounded'

TheVerge.com, here.

Enervit: impegni presentati all'AGCM

Testo degli impegni qui.

 In merito alla distribuzione online: autonomia nel determinare i prezzi di rivendita ma necessità di rispettare l’immagine il valore dei marchi di Enervit.

Recap of the Copyright Office’s Roundtables on Orphan Works and Mass Digitization

ARL Policy Notes, here.

MPs and open-data advocates slam postcode selloff

TheGuardian.com, here.

General insurance add-ons: Provisional findings of market study and proposed remedies

UK Financial Conduct Authority, here.

Most Favoured Nation (MFN) clauses

Oxera, Notes prepared for Direct Line Insurance Group plc (UK Competition Commission's private motor insurance market investigation), here (pp. 28-33) and  here (pp. 23-33).

Here's why Amazon Prime can afford to raise prices

TheVerge.com, here.

EC welcomes General Court judgments in cement cartel case confirming its investigatory powers

Press release, here.

Incentives to Create *Whose* Knowledge?

J. Bessen, here.

Higher Education in England

OFT, Report on findings from the Call for Information, here.

Making merger control simpler and more consistent in Europe – A “win - win” agenda in support of competitiveness

Report to the French Ministry for Economy and Finance, here.

A Brief History of FRAND

J. Contreras, here.

Does the FTC Have a New IP Agenda?

J. Wright, here.

Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?

Competition Policy, here.

US Judiciary Hearing on notice and takedown provisions under the DMCA

Written testimonies here.

Abuse of Dominance in Technology-Enabled Markets: Established Standards Reconsidered?

M. Rato, N. Petit, here.

Small Businesses As Consumers: Are They Sufficiently Well Protected?

ESRC, A Report for The Federation of Small Businesses, here.

Google Unmasks Patent Accuser in Tangled Goldman Link

Bloomberg.com, here.

PCW Moneysupermarket to sell consumer data

Mediatel.co.uk, here.

Mehr oder weniger Wettbewerb im Internet?

J. Haucap (compte rendu der NZZ), hier.

Unilateral Effects Analysis in Merger Review: Limits and Opportunities

M. Coate, here.

Chiusura dell’istruttoria per abuso di posizione dominante da parte del gruppo Ferrovie dello Stato

Provvedimento qui.  Impegni qui.

Europe finalising robust data protection laws

Beuc.eu, here.

Draft Tribunal Rules on Collective Actions

UK Competition Appeal Tribunal, here.

French Competition Regulator Probes Roche, Novartis on Avastin

Businessweek.com, here.

Garcia v. Google: Stanislavski and Meisner Pay a Visit to Copyright

R. Picker, here.

Patentholder on Breast Cancer Tests Denied Injunction in Lawsuit

NYTimes.com, here.
Opinion here.

Vertical agreements: a new priority in antitrust enforcement

Conference organized by the Italian Competition Authority (6 March 2014), Programme and Presentations here.

Google faces $5B antitrust fine in India — but this time it can't settle

Zdnet.com, here.

Exclusive rights in classical art works: the "armed David" case and Italian law

IPkat.com, here.

Distortions and Disincentives in Intellectual Property and Communications Law

Sixth Annual Conference on Innovation and Communications Law
Leeds, England - 2-3 July, 2014
Call for papers here. 

King my Candy, Crush my Heart: The Weird World of Trademark Registrations

Aaronsanderslaw.com, here.

How Can Software Interoperability Be Achieved Under European Competition Law and Related Regimes?

I. Graef, here.

DOJ responds to public comments on US Airways/American merger

DOJ, here.

Sharing Risk in Collective Actions

Competitionbulletin.com, here.

Review of banking for small and medium - sized businesses (SMEs) in the UK: Update on work to date

OFT, here.

Copyright Trolling, An Empirical Study

M. Sag, here.

Google: Piracy is an Availability and Pricing Problem

TorrentFreak.com, here.

Competition Policy in the Digital Age

A. Italiener, here.

Schadenersatzklage der Hörgerätefirma GN Store gegen das Bundeskartellamt abgewiesen

Lto.de, hier.

Virginia General Assembly combats patent trolls

Augustafreepress.com, here.

Home copying levy was too restricted, Dutch Supreme Court says

Futureofcopyright.com, here.

Spain: YouTube Cannot be Enjoined to Prevent Future Copyright Infringing Uploads

M. Pereira, here.

Privacy groups ask FTC to block Facebook-WhatsApp deal

Cnet.com, here. Complaint here.

How do comparison shopping sites make a living?

P. Belleflamme, here.

UK: Insurers, brokers rally to end MFN clauses

Competitionpolicyinternational.com, here.

Consumer Welfare in Competition and Intellectual Property Law

H. Hovenkamp, here.

First remarks of an Italian administrative court on the ICA’s new power to file a claim against administrative measures hindering competition

C. Lo Surdo, here.

The Administrative Supreme Court Confirms AGCM's Pfizer Decision

C. D'Amore, here.

In U.S. mergers, no one waits for this waiting period

Reuters.com, here.

Two economists file pro-Apple brief in e-book antitrust case

Tech.fortune.cnn.com, here.  Amici Curiae Brief, here.

Aereo in International Perspective: Individualized Access and U.S. Treaty Obligations

J. Ginsburg, here. 

Why Aereo Matters to the Cloud: A Primer

Project-disco.org, here.

Droits d’auteur sur les vidéos : « L’âge d’or des “YouTubeurs”, c’est fini »

Rue89.nouvelobs.com, ici.

Algorithmic Accountability Reporting: On the Investigation of Black Boxes

N. Diakopoulos, here.

Behavioural economics and its impact on competition policy

Oxera for the Netherlands Autoriteit Consument & Markt, here.

Los requisitos que impone Android ponen en duda su proverbial libertad

ElConfidential.com, aquì.

Pirates Are The Movie Industry’s Most Valuable Customers

Torrentfreak.com, here.

AGCM sanziona cartello Roche Novartis

Provvedimento qui.

Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ

J. Wright, D. Ginsburg, here.

Intellectual Property Valuation

Expert Group, EC Directorate-General for Research andInnovation, here.

Repatching the Quilt: An Update on State RPM Laws

M. Lindsay, here.

Patent Reform Gone Wild

R. Epstein, here.

Understanding Behavioral Antitrust

A. Tor, here.

Big Data Privacy Workshop

MIT/White House, Video here. Agenda here.

New law to prevent sale of health data for commercial purposes

Out-law.com, here.

Justice Department to Supreme Court: Shut down Aereo and its funny little antennas

Gigaom.com, here.

SCOTUS accepts teeth-whitening case; could decision impair state bars’ ability to regulate lawyers?

ABAJournal.com, here.

Crossing the Rubicon: Why the Comcast/Time Warner Cable Merger Should Be Blocked

M. Stucke, here.

Why India's antitrust body should scrutinise the WhatsApp buy

Business-standard.com, here.

Oyster Books: Disrupting the Disruptor

Olivesoftware.com, here.

The Empty Promise of Behavioral Antitrust

A. Devlin and M. Jacobs, here.

US Senator McCaskill Introduces Bill to Crack Down on Patent Trolls

Koamtv.com, here.

Russian Antitrust Watchdog to Reduce Air Fares By 'Destroying' Foreign Booking System

Themoscowtimes.com, here.

Perchance to Dream: Well Integrated Public and Private Antitrust Enforcement in the European Union

M. Marquis, here.

L'exploitation numérique des livres indisponibles du XXe siècle est conforme à la Constitution

Conseil constitutionnel, Décision n° 2013-370 QPC du 28 février 2014, ici. A lire aussi ActuaLitté, ici.

Lawrence Lessig Settles Fair Use Lawsuit Over Phoenix Music Snippets

Eff.org, here.

The European Union is grilling Apple and Google about free-to-play apps

The Verge.com, here.

Advocate General Opens Door to Umbrella Claims in Cartel Damages Cases

J. Van Acker, V. Lefever, here.

Regulatory Policy and Behavioural Economics

P. Lunn, here (read only)

The FTC at 100

R. Lande, here.

Humility, Institutional Constraints and Economic Rigor: Limiting the FTC’s Discretion

G. Manne, here.

Las patentes y la libre competencia: informe sobre el anteproyecto de ley de patentes

CNMC, Aquì.

Brief of Amici Curiae Law, Business, and Economics Scholars in Alice Corp. v. CLS Bank, No. 13-298 (software patents)

Here.
See also FSF's Brief, here.

CJEU says that spas must pay copyright fees and that territorial monopoly of collecting societies is OK

IPKat, here.

Will the Supreme Court save us from software patents?

Washingtonpost.com, here.

Secret 'Innocence of Muslims' Order Caused Google to Go Ballistic

Hollywoodreporter.com, here.
Garcia v. Google here. 

The Internet of Things: Building Trust to Maximize Consumer Benefits

J. Brill, here.

Apple officially appeals e-books antitrust ruling, asks for dismissal or retrial

Appleinsider.com, here. Appellate Opening Brief here (Scribd).

Uber kept new drivers off the road to encourage surge pricing and increase fares

TheVerge.com, here.

UK Government response to consultation on EU copyright rules

Here.

COMESA: new rules on merger control imminent

Iflr.com, here.

As Barnes & Noble Nook revenues slide 50%, the company says it’s launching another tablet

Gigaom.com, here.

Schweizer Firmen profitieren von Whatsapp-Übernahme

Nzz.ch, hier.

Flight Centre found guilty of anti-competitive behavior

Cch.com.au, here.Ruling here.

Archives and Copyright: Developing an Agenda for Reform

Create.ac.uk, here.

Facebook-WhatsApp Deal Risks Sparking Privacy Probes Across EU

Bloomberg.com, here.

Data protection authorities in Canada and The Netherlands on WhatsApp already here. 

Study on the Right of Making Available; Comments and Public Roundtable

US Copyright Office, here.

Kobo challenges Canada e-book settlement

Application here.

Digitales Gold: Nutzen und Wertschöpfung durch Open Data für Berlin

Tsb-berlin.de, hier.

More work needed to protect European Union from patent trolls

Microsoft, here.

Bibliothèques universitaires : les accords entre Couperin et Elsevier

Actualitte.com, ici.

Berliner Wasserbetriebe müssen Preise senken

Olg-duesseldorf.nrw.de, hier.

Refusal by CNMCcompetencia to open infringement proceedings against Pfizer for abuse of dominant position

Here (Spanish).

Comcast’s Traffic Pact With Netflix

Business.time.com, here.

Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy

J. Kirkwood, here.

UK Competition Agency Accepts Commitments from Hotel and Online Travel Agents to Eliminate Discount Restrictions

JonesDay.com, here.

WhatsApp und Facebook: Oh, der Datenschutz

Heise.de, hier.
S. auch Kommentar zu Facebooks WhatsApp-Kauf: Der Kampf um das Mobildisplay, hier.

Concurrence et croissance pour l’après-crise

J. Almunia, ici.

The FTC: 100 Years of Antitrust and Competition Policy

George Mason Antitrust Symposium, Videos here.

Big Data and Consumer Privacy

J. Brill, here.

AG Opinion in Kone: EU ‘Effectiveness’ Law Wades Further into National Civil Litigation

M. Marquis, here.

Facebook’s WhatsApp Deal Seen Avoiding U.S. Antitrust Challenge

Bloomberg.com, here.

Ruling dismissing on-line booking price parity class action claim in the US

Online Travel Company (OTC) Hotel Booking Antitrust Litigation, U.S. District Court for the Northern District of Texas, 12-cv-3515-B, 18 February 2014, here.

Accessibility Excitement in Geneva

Benetech.blogspot.ch, here.

Mexico's President Sends New Competition Bill to Congress

Nasdaq.com, here.

The EU Google Investigation: A Remedy In Search Of A Problem

T. Graf, Presentation here.

Review of the technology transfer rules – update after public consultation

A. Vernet, Presentation here.

German Antitrust Cases in the Internet Economy

S. Hossenfelder, Presentation here.

Preishoheit von den Buchungsplattformen zurückholen

Hier (Schweiz) ;
hier (Österreich)
 

Getting lost in the new Google Maps

TheVerge.com, here.

Tobacco packaging and intellectual property law

Aclatterofthelaw.com, here.

FCC chair announces plan for new net neutrality rules

TheVerge.com, here.

Investigations of consummated and non-notifiable mergers

OECD Competition Committee, Contributions from US, EU, UK, D
Other contributions here.

Consultazione pubblica sulle Linee Guida della Lega Nazionale Professionisti Serie A per la commercializzazione in forma centralizzata dei diritti audiovisivi nelle Stagioni sportive 2015/16, 2016/17 e 2017/18

AGCM.it, here.

Patent Trolling — Why Bio & Pharmaceuticals are at Risk

R. Feldman, W.Nicholson Price II, here.

Leistungsschutzrecht: Verleger verbünden sich mit VG Media

Heise.de, hier.

U.S. judge dismisses price-fixing claim against hotels, websites

Reuters, here.see also Businessweek.com, here.

Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?

S. Summers, here.

Bundeskartellamt verhängt Bußgelder gegen Zuckerhersteller

Bundeskartellamt, hier. Handelsblatt hier.

EU to assess risks of conflicting laws that apply online

Out-law.com, here.

The Google commitments and the transformation of EU antitrust enforcement

D. Gerard, here.

Commissioner Wright’s McWane Dissent Illuminates the Law and Economics of Exclusive Dealing

T. Lambert, here.

Secret Ties in Google's "Open" Android

Benedelman.org, here.

Google Commitments (III)

Here.Read also Google's post, here.

Hyperlinks, making available and the 'new public' -- or just a dead end?

The1709blog.blogspot.ch, here.

If a Cable Giant Becomes Bigger

NYTimes.com, here.

The Forward - Looking Nature of Merger Analysis

D. Feinstein, here.

Contractual arrangements applicable to creators (in selected EU Member States)

Study for the European Parliament, here.

Die Benzinpreise schwanken stärker als je zuvor

FAZ.net, hier.

Linking to freely available content is not copyright infringement (challenging ramifications included)

TaylorWessing, here.

Thomson Reuters EU Antitrust Pact Challenged by Morningstar

Bloomberg.com/news, here. 

EU Secretary General’s decision on Privacy Surgeon’s DG-COMP appeal (Google Search)

PrivacySurgeon.org, here. 

CJEU on Hyperlinking: Svensson Reference

Press Release, C-466/12, here. Judgment here.
Why no Advocate General's opinion on these very delicate issues (despite mentioning AG Sharpston on the Curia website, - as noticed by IPkat) ?

Previous @wavesblog posts on hyperlinking here. 

When Competition Law Analysis Goes Wrong – The Italian Pfizer/Pharmacia Case

D. Geradin, here.

Europa setzt Standards für vernetzte Autos

Heise.de, hier.

La propriété des données, défi majeur du XXI e siècle

LesEchos.fr, ici.

Comcast Set to Acquire Time Warner Cable for $45 Billion

NYTimes.com, here.

DOJ Proposes Remedy to Address Bazaarvoice’s Unlawful Acquisition of PowerReviews

Press Release, here.

Copyright and the Digital Economy

Final Report,  Australian Law Reform Commission, here.

Google's once-secret, restrictive Android license agreements with Samsung and HTC published

Fosspatents.com, here.

Commissioner Almunia leaves many perplexed (and in the dark) over Google

I-Comp.com, here.

Google Deal With Almunia Said to Be Criticized by EU Officials

Bloomberg.com, here.

German Court: Valve is allowed to prohibit re-selling of Steam games

Futureofcopyright.com, here.
S. also Telemedicus, here (German).

Patients’ Needs, Medicines Innovation and the Global Public’s Interests

M. Lundeby-Grepstad, D.Tordrup, T. Craig and D. Taylor, here.

Advocate General Kokott on umbrella effects: a further, critical comment

Eutopialaw.com, here.

Public and Private Antitrust Enforcement in the United States

B. Baer, here.

A first reaction to AG Kokott's KONE Opinion (umbrella effects)

Howtocrackanut.blogspot.ch, here.

Yahoo-Yelp Partnership and “Coopetition” in Online Markets

D. O'Connor, here.

Copyright, Competition and Development

Max Planck Institute for IP and competition law for WIPO, here.

Taxation and Competition Policy

A. Gurría, here.

The Future of Fair Use After Google Books

J. Band, here.

Umbrella Liability For Price Fixing: Does The Forecast Call For More Damages In The EU And U.S.?

Antitrusttoday.com, here.

Apple Loses Bid to Delay Court-Ordered E-Books Antitrust Monitor

Businessweek.com, here.

Le Conseil d'État suspend le délai de 15 minutes pour les VTC

Ordonnance du 5 février 2014, SAS Allocab et autres
N° 374524, 374554, ici.

11. Considérant toutefois que le moyen tiré de ce que le simple fait d’accepter, pour un véhicule en circulation sur la voie publique, une réservation par téléphone ou par Internet en vue d’un départ aussi rapide que possible, ne fait pas partie des activités légalement réservées aux taxis et que, par suite, l’administration n’est pas fondée à justifier l’introduction d’un délai d’attente propre aux voitures de tourisme avec chauffeur par la nécessité de protéger l’exercice légal de la profession de taxi, est de nature, en l’état de l’instruction, à créer un doute sérieux sur le bien fondé du premier motif invoqué par l’administration  ;

12. Considérant, en second lieu, qu’il résulte de l’instruction, et notamment des échanges ayant eu lieu lors de l’audience publique, que le moyen tiré de ce que l’introduction d’un délai de quinze minutes entre la réservation d’une voiture de tourisme avec chauffeur et la prise en charge de son client n’aura aucun effet notable sur la fluidité du trafic est également, en l’état de l’instruction, de nature à créer un doute sérieux sur le bien fondé du second motif invoqué par l’administration ;

13. Considérant qu’il résulte de ce qui précède que, sans qu’il soit besoin d’examiner les autres moyens soulevés par les sociétés requérantes, le moyen tiré de ce que les dispositions du décret contesté qui introduisent, pour les voitures de tourisme avec chauffeur, un délai minimal de quinze minutes entre la réservation du véhicule et la prise en charge effective du client, portent à la liberté du commerce et de l’industrie une atteinte qui n’est ni nécessaire à un objectif d’intérêt général ni proportionnée à l’atteinte d’un tel objectif est, en l’état de l’instruction, de nature à créer un doute sérieux sur la légalité de ces dispositions.

V. aussi Avis du Conseil de la concurrence,Voitures de tourisme avec chauffeur (VTC), ici.

Private Enforcement Under EU Law: Abuse of Dominance and the Quantification of Lucrum Cessans

F. Maier-Rigaud, U. Schwalbe, here.

Nokia Releasing First Android Phone

Online.wsj.com, here.

English High Court concludes that terms of Luton Airport’s coach concession agreement are an unlawful abuse of its dominant position

Edwardswildman.com, here. Judgment here.

AAI Objects to Airline Merger Settlement

Here.

Fighting Corruption and Promoting Competition

D. Lewis, here.

Competition issues in the distribution of pharmaceuticals

P. Kanavos and O. Wouters, here.

Transplanting the Canadian UGC Exception to Hong Kong: Part 1

P. Yu, here.

UK Energy Secretary re British Gas dominance: a letter to regulators

BBC.co.uk, here.

Domain-Registrar haftet für Urheberrechtsverletzungen auf einer registrierten Seite

Heise.de, hier.

Italy: Consiglio di Stato reinstates original Pfizer Xalatan order

Thespcblog.blogspot.co.uk, here.

La Junta crea un grupo de reclamación por el pacto bancario sobre el euríbor

ElPais.com, aquì.

Disruptive Competition Part 2: What Role for Regulators and Competition Policy?

Judoeconomics.wordpress.com, here.

BGH: Einzelbilder aus Filmen sind urheberrechtlich geschützt

Heise.de, hier.

More competition for ebooks in Canada coming soon

A. Katz, here.

Gare d’appalto per l’acquisto aggregato di farmaci antitumorali: possibile intesa anticoncorrenziale

AGCM, Provvedimento  di avvio qui.

The American Antitrust Institute Urges Speedy Action Against Abusive Patent Trolls

Here.

Bork and Microsoft: Why Bork Was Right and What We Learn About Judging Exclusionary Behavior

H. First, here. 

Richtlinie Big Data

Datenschutzstelle (DSS) der Landesverwaltung des Fürstentums Liechtenstein, hier. 

A profile of current and future audiovisual audience

Attentional, Headway International and Harris Interactive for the European Commission, here. 

Google' newer commitments proposal: four years and no time for a market test

Press release, Here.

Mergers after cartels: How markets react to cartel breakdown

S. Davies, P. Osmosi, M. Graffenberger, here.

Definition of Transaction for the Purpose of Merger Control Review

OECD Policy Roundtable, here.

“Human Rights” Protection for Corporate Antitrust Defendants: Are We Not Going Overboard?

A. Sánchez Graells, F. Marcos, here.

EU Directive on collective rights management approved by Parliament

Press release, here.

EU Commission to investigate cross-border pay-TV movie services – a new Murphy’s law?

Reedsmith.com, here.

Quantification of Antitrust Damages

F.Maier-Rigaud, U. Schwalbe, here.

Methods for Calculating Cartel Damages: A Servey

A.M. Doose, here.

Toward a European Directive on Damages Actions

F. Maier-Rigaud, here.

Moving Away from High-Level Theories: A Market-Driven Analysis of FRAND in the Context of Standardization

D. Geradin, here.

The Counterfactual Analysis in EU Merger Control

D. Geradin, I. Girgenson, here.

TeleCinco v. YouTube

Andiencia Provincial Civil de Madrid, Sentencia n. 11/2014, 14 de enero de 2014, aquì.

Pete Seeger - Singer, Activist and Defender of the Folk Tradition

Wipo.int, here.

Made In - The value of Country of Origin for future brands

FutureBrand, here.

Comments on Issues Raised at Internet of Things FTC Workshop

Here.

Who owns the data in the Internet of Things?

TaylorWessing.com, here.

Umbrella Effects

R. Inderst, F. Maier-Rigaud, U. Schwalbe, here.

HRS - Hotel Reservation Service

Beschluss, Bundeskartellamt, hier.

Tech Startups

The Economist, Special Report, here.

Reflections on Antitrust Enforcement in the Obama Administration

B. Baer,  here.

Patent trolling was up 11 percent last year

J. Bessen, here.

Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities

Issues Report to the College Art Association, here.

AG Kokott on cartelists' civil liability for "umbrella pricing"

Case C‑557/12, KONE AG and Others, here.

Blocage et filtrage sur internet: analyse de la situation actuelle

IPdigit.eu, ici.

Google Maps’ open-source rival gets huge boost as Telenav buys OpenStreetMap leader Skobbler

Gigaom.com, here.

Resale Price Maintenance and Most - Favored Nation Clauses: The Future Does Not Look Bright

Steptoe, here.

OFT clears way for discounts on hotel rooms

OFT, Press release here.Decision here.

Intellectual Property Experimentalism by Way of Competition Law

T . Wu, here.

Big Data: Legal Challenges

Shelston, here.

Secondary Liability for Trademark Infringement On the Internet

Kernochan Center, Columbia Law School, Symposium, Video here.

Swatch v Bloomberg Answer

Aaronsanderslaw.com, here.

Handbook on European data protection law

FRA - EU Agency for Fundamental Rights, here.

Comments Received on Green Paper "Copyright Policy, Creativity, and Innovation in the Digital Economy"

Here.

Gawker: Tarantino should blame himself for Hateful Eight script leak

TheGuardian.com, here.

Time to get Angry about Data Protection!

Paulbernal.wordpress.com, here.

Access to data protection remedies in EU Member States

FRA– European Union Agency for Fundamental Rights, here.

Las indemnizaciones de daños derivadas del cártel del azúcar

F. Marcos, aquì.

Commentary to the Marrakesh Treaty on accessible format copies for the visually impaired

M. Ficsor, here.

Google's DeepMind acquisition might be about search, not robots

TheVerge.com, here.

Tarantino v. Gawker

Here.

The dumb state of the smart home

TheVerge.com, here.

Regulating Smart Metering in Europe: Technological, Economic and Legal Challenges

G. Cervigni, P. Larouche, here.

Different voices on Bazaarvoice

Lawprofessors.typepad.com, Pozen, Sunshine, Rancour and Bhat here;  Levitas here.

Everything Old is New Again: Reframing the Cultural Explanation for Intellectual Property Infringement in China

D. Whalen, here.

Preliminary rulings in EU Competition Law

D. Geradin, Presentation here.

Google and Samsung reach global patent license deal

Gigaom.com, here.

EU data bill delayed until after May elections

EuObserver.eu, here.

Extraction automatisée des données et des textes : Savoirscom1 s’engage pour une exception!

Savoirscom1.info, ici.

The New Disruptors at Sundance

T. Wu, here.

Premier League steps up TV battle

SportingLife.com, here.

Connected Televisions - Convergence and Emerging Business Models

OECD Digital Economy Papers No. 23, here.

Judge Rules in Favor of DOJ Finding Bazaarvoice / PowerReviews Merger Anticompetitive

McDermott Will & Emery, here.

Self-Replicating Technologies and the Challenge for the Patent and Antitrust Laws

D. Lim, here.

Netflix Says It'll Be Fine Without Net Neutrality Rules; But What About The Next Netflix?

TechDirt.com, here.

Statement of South Africa on Access to Essential Medicines

Keionline.org, here.

Google Awarded Patent For Free Rides To Advertisers’ Locations

TechCrunch.com, here.

How Google controls Android's open-source software

TheGuardian.com, here.

Big Data and the Future of Privacy

Whitehouse.gov, here.

At the Intersection of Antitrust & High-Tech: Opportunities for Constructive Engagement

R. Hesse, here.

Net neutrality just got a boost in Europe, thanks to a consumer rights committee

Gigaom.com, here.

Pope Francis says the internet is a 'gift from God'

Theverge.com, here.

Lisbon Council and Nesta Launch the Think Tank "European Digital Forum"

Lisboncouncil.net, Press Release here.

Circumventing a protection system of a games console may, in certain circumstances, be lawful

C-355/12, Nintendo and Others v PC Box Srl and Ot, Press Release here. Full text here.